So, voters, you thought you banned the “Frankenstein” veto last year?

Not so fast.

In what his office acknowledged was a mistake, Gov. Jim Doyle used the monstrous veto method on a minor policy item in the 2009-11 budget, violating the state constitution and creating a new law the Legislature didn’t intend.

Discovery of the veto flub Tuesday sent lawmakers and Doyle’s office scrambling to determine whether the veto language stands and what options are available to undo it.

“This is the first time we’ve ever encountered this,” said Sen. Mark Miller, D-Monona, co-chairman of the Legislature’s budget committee. “It’s a completely new issue. There’s no precedent.”

At issue is the scope, timing and committee makeup of a study commissioned by the Legislature on state facilities for the mentally retarded. Doyle’s veto changed the study language by striking words from three sentences to create a new sentence.

“It was an error,” said Dave Schmiedicke, Doyle’s budget director. “The governor’s intent could’ve been accomplished through a correct veto.”

The veto is now law, but Doyle will work with lawmakers on a fix compatible to both sides, Schmiedicke said.
But citing a 1992 opinion by Doyle when he was attorney general, Carrie Lynch, a spokeswoman for Senate Majority Leader Russ Decker, D-Weston, said it’s unclear what the law is regarding the study. The 1992 opinion said a partial veto by former Gov. Tommy Thompson didn’t result in “complete and workable law,” leaving legislative budget language intact.

Voters banned the Frankenstein veto last year by amending the constitution. It acquired that nickname because it allowed governors to stitch together words and phrases from multiple sentences in a budget to create a new one. Still, Wisconsin governors have broad veto power. Wisconsin governors still have broad partial veto powers in budget bills, including the ability to strike individual numbers, words within a sentence or entire sentences.

Doyle’s use of the Frankenstein veto — one of 81 vetoes he announced Monday — presents a difficult constitutional question for lawmakers and the governor, said Mike Wittenwyler, a Madison lawyer who has advised clients on gubernatorial veto issues.

“The biggest decision you have with any of these vetoes is whether it’s big enough for anyone to want to challenge it,” Wittenwyler said.

Miller said lawmakers were consulting with lawyers.

Lawmakers could try to override the veto, solve the problem with new legislation or sue the governor, Lynch said.
But Bob Lang, director of the Legislature’s budget office, advised lawmakers Tuesday not to attempt an override because if it failed, legislative authority would be weakened. He told the budget committee the veto is “contrary to the constitutional amendment.”

Schmiedicke said the veto error may have occurred because the governor had only a couple of days to review the $62 billion budget passed by the Legislature for the two years that start today.

Jeff Kaczmarski, vice president of legal affairs for Bethesda Lutheran Homes and Services in Watertown, said Bethesda Lutheran asked the Legislature for the study and that the governor’s veto improved it.

Click here to read the veto language.

Click here to read the Legislative Fiscal Bureau's note on the veto.

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